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An intermediate appellate court should not continue to recognize the wrongful birth tort without the slightest hint of approval from the Michigan Supreme Court or Michigan Legislature. If society is to recognize such a tort, it should do so through the action of a majority of the legislature, whose role it is to set social policy.
Plaintiffs Brandy and Brian Taylor, individually, and Brandy Taylor as next friend and mother of Shelby Taylor, a minor, (“The Taylors”) filed their complaint in August 1996. The Taylors alleged that Brandy Taylor had a doctor-patient relationship with Kurapati, a specialist in radiology, and Annapolis. On April 19, 1994, Brandy Taylor gave birth to the couple's daughter, Shelby Taylor. Throughout her pregnancy, Brandy Taylor had been treated by Dr. Leela Suruli. Suruli had ordered that a routine ultrasound be performed in Brandy Taylor's second trimester. The ultrasound was conducted on December 4, 1993, and interpreted by Kurapati, an agent of Annapolis. Kurapati concluded that the pregnancy was seventeen weeks along, plus or minus two weeks, and that there were no visible abnormalities with the fetus. A second ultrasound was conducted on March 16, 1994, and interpreted by another physician, Dr. M.B. Cash. Cash indicated that the baby's femurs could not be adequately identified and believed that a high resolution ultrasound could be helpful for further investigation. Suruli told Brandy Taylor that the baby had short femur bones and would merely be shorter than average. Brandy Taylor decided not to have another ultrasound. Shelby Taylor was born on April 19, 1994, with "gross anatomical deformities including missing right shoulder, fusion of left elbow, missing digits on left hand, missing femur on left leg and short femur on right." A study at the University of Michigan Hospital suggested that Shelby Taylor had femur-fibula-ulna syndrome. In their complaint, the Taylors alleged that the standard of care in performing the initial ultrasound had been breached by Kurapati when he failed to locate all four limbs at the time of the ultrasound. The Taylors alleged that the ultrasound should have shown Shelby Taylor's disabilities and that the failure to reveal the disabilities deprived the Taylors of their right to make a reproductive decision regarding the pregnancy. In addition to their claim of medical malpractice, the Taylors also alleged that, because of defendants' negligence, they suffered emotional distress at witnessing the birth of their child. Annapolis filed a motion for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10). Annapolis primarily argued that the Taylors had failed to file their complaint within the statute of limitations for medical malpractice actions. Soon thereafter, Kurapati filed a similar motion for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10). The trial court concluded that the Taylors' medical malpractice claim was not timely filed and dismissed the complaint with regard to any malpractice claims. However, the trial court allowed the Taylors' claim of negligent infliction of emotional distress to go forward. The trial court gave defendants an opportunity to submit motions for summary disposition with regard to the negligent infliction of emotional distress claim and eventually, without oral arguments, granted defendants' motions for summary disposition of the Taylors' claim of negligent infliction of emotional distress. The trial court also denied the Taylors' motion for reconsideration with regard to its earlier ruling regarding the statute of limitations.
Should the court continue to recognize a wrongful birth tort?
The court explored the history and rationale for the tort. The benefits rule invited the jury to weigh the costs to the parents of a disabled child, of bearing and raising that child, against the benefits to the parents of the life of that child. Further, the use of the benefits rule in wrongful birth cases could slide into applied eugenics. The court thus held that wrongful birth would no longer be recognized. The holding applied to this case and complaints filed after this opinion's release. The Taylors also failed to file within medical malpractice limitation period and facts did not support claim of negligent infliction of emotional distress.